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June 29, 2015
What Happens If I’m Given a Spent Conviction?

By Samantha D’Silva

During the sentencing of an offence in the Magistrates Court, an offender may wish to ask the Court for spent conviction order.

A spent conviction order means that you may not have to disclose your conviction to others.

Further, the Spent Convictions Act 1988 provides certain conditions in which it is unlawful for the discrimination of a person on the grounds of a spent conviction.

However, in some circumstances you must disclose spent convictions, and it may be entirely lawful for those convictions to ‘count against you’. Such circumstances may include (but are not limited to) applying for employment as a police officer, prison officer or casino employee.

When Can a Spent Conviction Order Be Granted?

The Court will only grant a spent conviction order if, pursuant to section 45 of the Sentencing Act 1995, the Court considers the offender is unlikely to commit such an offence again; having regard to:

‑ The fact that the offence is trivial

‑ The previous good character of the offender, or

‑ It considers the offender should be relieved immediately of the adverse effect that the conviction might have on the offender.

When Should a Spent Conviction Order Be Made?

In determining whether a spent conviction order should be made, the Court will consider some of the following issues:

The circumstances of the offence

Whether the offender has recognised that their behaviour was wrong, expressed remorse and taken responsibility for their actions

The offender’s prior criminal and traffic record, and if relevant, the offender’s previous good character

What steps the offender has taken to ensure the offence does not occur again (i.e. if the offence involved violence, has the offender addressed their violent behaviour through counselling or the like)

Whether it is in the public interest to have the conviction on the offender’s record – i.e. if prospective employers are entitled to have notice of such conviction, and

The effect of the conviction upon the offender – i.e. upon their current and future employment.

The Role of References

You may require references to support your application for a spent conviction order, including references from an employer as to the potential impact of a conviction on your employment.

Ultimately, it is at the Court’s discretion as to whether a spent conviction order is granted.

Even if a spent conviction order is granted, the offender may still receive a penalty for the offence (i.e. a fine, community based order or another penalty relevant to the offence).

Should you require further information as to sentencing, pleas in mitigation or spent conviction orders, please contact Samantha D’Silva at our Gosnells office at sdsilva@lbandh.com.au